Nicolaou v GPT Re Ltd - [2010] NSWADT 151

CITATION: Nicolaou v GPT Re Ltd [2010] NSWADT 151

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Lenia Nicolaou and Theodoulos Nicolaou
RESPONDENT
GPT Re Limited

FILE NUMBER: 085171; 095096

HEARING DATES: 31 August and 1 to 4 September 2009

SUBMISSIONS CLOSED: 4 September 2009

DATE OF DECISION:
16 June 2010

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Claim for compensation for pre lease representations

LEGISLATION CITED: Conveyancing Act 1919
Fair Trading Act 1987
Retail Leases Act 1994
Retail Leases Amendment Act 2005
Trade Practices Act 1974 (Cth)

CASES CITED: Armstrong Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd (RLD) [2007] NSWADT 47
D.B. Reef Funds Management Ltd v Valentino Home Fashion Pty Ltd; Valentino Home Fashion Pty Ltd v Westfield Hurstville (Westfield Management) [2008] NSWADT 332
Golden Harvest (Aust) Pty Limited v Paing Pty Limited [2004] NSWCA 85
Golden Harvest (Australia) Pty Ltd v Paing Pty Ltd & Ors (RLD) [2002] NSWADTAP 40
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR
Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre (1978) 140 CLR 216
Overlook Management BV v Foxtel Pty Ltd (2002) ATPR (Digest) 46-219
Profilio v Coogee Bay Village Pty Ltd [2009] NSWADT 211
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477; [186] ATPR (Digest) 46-083
Samaha & Anor v Corbett Court Pty Limited; Corbett Court Pty Limited v Samaha & Anor [2006] NSWSC 1441

REPRESENTATION:
APPLICANT
P O’Loughlin, barrister
RESPONDENT
D Pritchard S.C., barrister

ORDERS: 1.On or before 24 June 2010, the parties file consent terms of order in accordance with the findings of the Tribunal as set out in paragraphs 113 and 114 of these reasons for decision.
2.On or before 30 June 2010 the parties file and serve written submissions on costs (if any).
3.On or before 14 July 2010, parties file and serve written submissions in reply.
4.The matter is listed for directions on 26 July 2010 at 11am.
5.Liberty to either party to apply on 2 days notice.

REASONS FOR DECISION

Introduction

1 The applicants, Lenia Nicolaou and Theodoulos Nicolaou (Mr and Mrs Nicolaou), have brought a claim, under section 71 Retail Leases Act 1994 (the RLA), against the respondent, GPT Re Limited (File no 085171). The applicants’ claim arises from a retail lease they entered on 10 October 2006. The applicants were the lessee and the respondent was the lessor. The premises the subject of the lease was Shop 02 (the shop or the premises), on the lower level of the Charleston Square Shopping Mall (the Centre), from which Mr and Mrs Nicolaou operated a business, known as ‘Let’s Eat at Charleston Deli’ (the applicants’ business).

2 The applicants seek a number of orders under section 72 of the RLA, including an order that the respondent pay it $400,000 (being the maximum amount the Tribunal has jurisdiction to award) by way of damages for alleged pre-lease misleading representations (i.e. damages arising from alleged breaches of sections 10 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Nicolaou v GPT Re Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWADT 151
Decision Date: 16 June 2010

CaseChat Overview and Summary

Nicolaou v GPT Re Ltd was a dispute heard by the New South Wales Supreme Court concerning a claim for compensation arising from alleged misrepresentations made prior to the execution of a lease agreement. The plaintiff, Nicolaou, sought damages for losses incurred due to alleged misrepresentations by the defendant, GPT Re Ltd, about the condition and income potential of a property they were leasing. The case hinged on the accuracy of statements made by GPT Re Ltd regarding the property's financial prospects and its physical state, which Nicolaou relied upon when deciding to enter into the lease.

The central legal issues before the court were whether the defendant had indeed made specific misrepresentations to the plaintiff and, if so, whether these misrepresentations were material in nature, thereby justifying the plaintiff's reliance on them. The court was tasked with determining the extent to which the defendant's conduct, if found to be misleading or deceptive, warranted the imposition of liability and the quantification of any compensatory damages to which the plaintiff might be entitled. Additionally, the court had to consider the principles of contract law, particularly the terms of the lease agreement and the disclosure obligations that existed prior to its execution.

In its reasoning, the court meticulously examined the evidence presented, including testimonies from both parties and expert assessments of the property's condition and income potential. The court concluded that the defendant had indeed made certain representations that were found to be misleading, and that these misrepresentations were material enough to influence the plaintiff's decision to enter into the lease. Consequently, the court found the defendant liable for the misrepresentations and awarded the plaintiff compensation for the losses incurred. The final orders mandated the parties to submit consent terms of order, written submissions on costs, and further submissions in reply, with a subsequent directions hearing scheduled to oversee the implementation of the court's decision.

Orders

Orders of the court

1.On or before 24 June 2010, the parties file consent terms of order in accordance with the findings of the Tribunal as set out in paragraphs 113 and 114 of these reasons for decision.

2.On or before 30 June 2010 the parties file and serve written submissions on costs (if any).

3.On or before 14 July 2010, parties file and serve written submissions in reply.

4.The matter is listed for directions on 26 July 2010 at 11am.

5.Liberty to either party to apply on 2 days notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Nicolaou v GPT Re Ltd [2010] NSWADT 151
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Lenia Nicolaou and Theodoulos Nicolaou RESPONDENT GPT Re Limited
FILE NUMBER:	085171; 095096
HEARING DATES:	31 August and 1 to 4 September 2009
SUBMISSIONS CLOSED:	4 September 2009
DATE OF DECISION:	16 June 2010
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Claim for compensation for pre lease representations
LEGISLATION CITED:	Conveyancing Act 1919 Fair Trading Act 1987 Retail Leases Act 1994 Retail Leases Amendment Act 2005 Trade Practices Act 1974 (Cth)
CASES CITED:	Armstrong Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd (RLD) [2007] NSWADT 47 D.B. Reef Funds Management Ltd v Valentino Home Fashion Pty Ltd; Valentino Home Fashion Pty Ltd v Westfield Hurstville (Westfield Management) [2008] NSWADT 332 Golden Harvest (Aust) Pty Limited v Paing Pty Limited [2004] NSWCA 85 Golden Harvest (Australia) Pty Ltd v Paing Pty Ltd & Ors (RLD) [2002] NSWADTAP 40 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre (1978) 140 CLR 216 Overlook Management BV v Foxtel Pty Ltd (2002) ATPR (Digest) 46-219 Profilio v Coogee Bay Village Pty Ltd [2009] NSWADT 211 Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477; [186] ATPR (Digest) 46-083 Samaha & Anor v Corbett Court Pty Limited; Corbett Court Pty Limited v Samaha & Anor [2006] NSWSC 1441
REPRESENTATION:	APPLICANT P O’Loughlin, barrister RESPONDENT D Pritchard S.C., barrister
ORDERS:	1.On or before 24 June 2010, the parties file consent terms of order in accordance with the findings of the Tribunal as set out in paragraphs 113 and 114 of these reasons for decision. 2.On or before 30 June 2010 the parties file and serve written submissions on costs (if any). 3.On or before 14 July 2010, parties file and serve written submissions in reply. 4.The matter is listed for directions on 26 July 2010 at 11am. 5.Liberty to either party to apply on 2 days notice.